Exhibit 10.1


 


OVERSTOCK.COM,
INC.


 


NONQUALIFIED
DEFERRED COMPENSATION PLAN


 

















 


OVERSTOCK.COM,
INC.


NONQUALIFIED
DEFERRED COMPENSATION PLAN


 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  
	
  Article 1
  - Definitions

  	
  1

  
	
   

  	
   

  
	
  1.1

  	
  Account

  	
  1

  
	
  1.2

  	
  Administrator

  	
  1

  
	
  1.3

  	
  Board

  	
  1

  
	
  1.4

  	
  Bonus

  	
  1

  
	
  1.5

  	
  Change-in-Control

  	
  1

  
	
  1.6

  	
  Code

  	
  2

  
	
  1.7

  	
  Compensation

  	
  2

  
	
  1.8

  	
  Deferrals

  	
  2

  
	
  1.9

  	
  Deferral Election

  	
  2

  
	
  1.10

  	
  Disability

  	
  2

  
	
  1.11

  	
  Effective Date

  	
  2

  
	
  1.12

  	
  Eligible Employee

  	
  2

  
	
  1.13

  	
  Employee

  	
  3

  
	
  1.14

  	
  Employer

  	
  3

  
	
  1.15

  	
  Employer Discretionary
  Contribution

  	
  3

  
	
  1.16

  	
  ERISA

  	
  3

  
	
  1.17

  	
  Investment Fund

  	
  3

  
	
  1.18

  	
  Participant

  	
  3

  
	
  1.19

  	
  Performance-based
  Compensation

  	
  3

  
	
  1.20

  	
  Plan Year

  	
  3

  
	
  1.21

  	
  Retirement

  	
  3

  
	
  1.22

  	
  Salary

  	
  3

  
	
  1.23

  	
  Separation from Service

  	
  4

  
	
  1.24

  	
  Service Recipient

  	
  4

  
	
  1.25

  	
  Trust

  	
  4

  
	
  1.26

  	
  Trustee

  	
  4

  
	
  1.27

  	
  Years of Service

  	
  4

  
	
   

  	
   

  	
   

  
	
  Article 2
  - Participation

  	
  4

  
	
   

  	
   

  
	
  2.1

  	
  Commencement of
  Participation

  	
  4

  
	
  2.2

  	
  Loss of Eligible
  Employee Status

  	
  4

  
	
   

  	
   

  	
   

  
	
  Article 3
  - Contributions

  	
  5

  
	
   

  	
   

  
	
  3.1

  	
  Deferral Elections -
  General

  	
  5

  
	
  3.2

  	
  Time of Election

  	
  5

  
	
  3.3

  	
  Distribution Elections

  	
  5

  
	
  3.4

  	
  Additional Requirements

  	
  6

  
	
  3.5

  	
  Cancellation of
  Deferral Election due to Disability

  	
  6

  
	
  3.6

  	
  Employer Discretionary
  Contributions

  	
  6

  



 

















 


	
  3.7

  	
  Crediting of
  Contributions

  	
  7

  
	
   

  	
   

  	
   

  
	
  Article 4
  - Vesting

  	
  7

  
	
   

  	
   

  
	
  4.1

  	
  Vesting of Deferrals

  	
  7

  
	
  4.2

  	
  Vesting of Employer
  Discretionary Contributions

  	
  7

  
	
  4.3

  	
  Vesting due to Certain
  Events

  	
  7

  
	
  4.4

  	
  Amounts Not Vested

  	
  7

  
	
   

  	
   

  	
   

  
	
  Article 5
  - Accounts

  	
  7

  
	
   

  	
   

  
	
  5.1

  	
  Accounts

  	
  7

  
	
  5.2

  	
  Investments, Gains and
  Losses

  	
  8

  
	
   

  	
   

  	
   

  
	
  Article 6
  - Distributions

  	
  9

  
	
   

  	
   

  
	
  6.1

  	
  Distribution Election

  	
  9

  
	
  6.2

  	
  Distributions
  Upon an In-Service Account Triggering Date

  	
  9

  
	
  6.3

  	
  Distributions
  Upon Retirement

  	
  9

  
	
  6.4

  	
  Substantially
  Equal Annual Installments

  	
  9

  
	
  6.5

  	
  Distributions
  due to other Separation from Service

  	
  10

  
	
  6.6

  	
  Distributions
  upon Separation from Service due to Disability

  	
  10

  
	
  6.7

  	
  Distributions
  upon Death

  	
  10

  
	
  6.8

  	
  Changes to Distribution
  Elections

  	
  10

  
	
  6.9

  	
  Acceleration or Delay in Payments

  	
  10

  
	
  6.10

  	
  Unforeseeable Emergency

  	
  11

  
	
  6.11

  	
  Domestic Relations
  Orders

  	
  11

  
	
  6.12

  	
  Minimum Distribution

  	
  11

  
	
  6.13

  	
  Form of
  Payment

  	
  11

  
	
   

  	
   

  	
   

  
	
  Article 7
  - Beneficiaries

  	
  11

  
	
   

  	
   

  
	
  7.1

  	
  Beneficiaries

  	
  11

  
	
  7.2

  	
  Lost Beneficiary

  	
  12

  
	
   

  	
   

  	
   

  
	
  Article 8
  - Funding

  	
  12

  
	
   

  	
   

  
	
  8.1

  	
  Prohibition Against
  Funding

  	
  12

  
	
  8.2

  	
  Deposits in Trust

  	
  12

  
	
  8.3

  	
  Withholding of Employee
  Contributions

  	
  12

  
	
   

  	
   

  	
   

  
	
  Article 9
  - Claims Administration

  	
  13

  
	
   

  	
   

  
	
  9.1

  	
  General

  	
  13

  
	
  9.2

  	
  Claims Procedure

  	
  13

  
	
  9.3

  	
  Right of Appeal

  	
  14

  
	
  9.4

  	
  Review of Appeal

  	
  14

  
	
  9.5

  	
  Designation

  	
  15

  



 

















 


	
  Article 10
  - General Provisions

  	
  15

  
	
   

  	
   

  
	
  10.1

  	
  Administrator

  	
  15

  
	
  10.2

  	
  No Assignment

  	
  15

  
	
  10.3

  	
  No Employment Rights

  	
  16

  
	
  10.4

  	
  Incompetence

  	
  16

  
	
  10.5

  	
  Identity

  	
  16

  
	
  10.6

  	
  Other Benefits

  	
  16

  
	
  10.7

  	
  Expenses

  	
  16

  
	
  10.8

  	
  Insolvency

  	
  16

  
	
  10.9

  	
  Amendment or
  Modification

  	
  17

  
	
  10.10

  	
  Plan Suspension

  	
  17

  
	
  10.11

  	
  Plan Termination

  	
  17

  
	
  10.12

  	
  Plan Termination due to
  a Change-in-Control

  	
  17

  
	
  10.13

  	
  Construction

  	
  18

  
	
  10.14

  	
  Governing Law

  	
  18

  
	
  10.15

  	
  Severability

  	
  18

  
	
  10.16

  	
  Headings

  	
  18

  
	
  10.17

  	
  Terms

  	
  18

  



 
















 


OVERSTOCK.COM, INC.


NONQUALIFIED DEFERRED COMPENSATION PLAN


 


Overstock.com, Inc., a Delaware corporation,
hereby adopts this Overstock.com, Inc. Nonqualified Deferred Compensation
Plan (the “Plan”) for the benefit of a select group of management or highly
compensated employees.  This Plan is an
unfunded arrangement and is intended to be exempt from the participation,
vesting, funding, and fiduciary requirements set forth in Title I of the
Employee Retirement Income Security Act of 1974, as amended.  It is intended to comply with Internal
Revenue Code Section 409A.


 


Article 1
- Definitions


 


1.1                               Account


 


The sum of all the
bookkeeping sub-accounts as may be established for each Participant as provided
in Section 5.1 hereof.


 


1.2                               Administrator


 


An administrative committee appointed by the
Board.  The Plan Administrator shall
serve as the agent for the Employer with respect to the Trust.


 


1.3                               Board


 


The Board of
Directors of the Employer.


 


1.4                               Bonus


 


Compensation which
is designated as such by the Employer and which relates to services performed
during an incentive period by an Eligible Employee in addition to his or her
Salary, including any pretax elective deferrals from said Bonus to any Employer
sponsored plan that includes amounts deferred under a Deferral Election or any
elective deferral as defined in Code Section 402(g)(3) or any amount
contributed or deferred at the election of the Eligible Employee in accordance
with Code Section 125 or 132(f)(4).


 


1.5                               Change-in-Control


 


Provided that such
term shall be interpreted within the meaning of regulations promulgated under
Code Section 409A, a “Change-in-Control” of the Employer (which, for
purpose of this Section 1.5 shall mean Overstock.com, Inc. but not
any of its affiliates or subsidiaries) shall mean the first to occur of any of
the following:


 


(a)           the date that any one person or
persons acting as a group, other than Patrick M. Byrne, Dorothy M. Byrne or
John J. Byrne or an individual or entity that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with Patrick M. Byrne, Dorothy M. Byrne and/or John J. Byrne, acquires
ownership of Employer stock constituting more than fifty percent (50%) of the
total voting power of the Employer;


 


(b)           the date that any one person or
persons acting as a group acquires substantially all of the assets of the
Employer; or


 


1

















 


(c)           the date that a majority of members
of the Employer’s Board is replaced during any 12-month period by directors
whose appointment or election is not endorsed by a majority of the members of
the Board prior to the date of the appointment or elections.


 


1.6                               Code


 


The Internal
Revenue Code of 1986, as amended.


 


1.7                               Compensation


 


The Participant’s
Salary and Bonus, provided that the Administrator, in its discretion, may
determine from time to time that any other remuneration (which may include
Performance-based Compensation) from the Employer shall be included in the
definition of “Compensation.”


 


1.8                               Deferrals


 


The portion of
Compensation that a Participant elects to defer in accordance with Section 3.1
hereof.


 


1.9                               Deferral Election


 


The separate
agreement, submitted to the Administrator, by which an Eligible Employee agrees
to participate in the Plan and make Deferrals thereto for a Plan Year.


 


1.10                        Disability


 


Provided that such
term shall be interpreted within the meaning of regulations promulgated under
Code Section 409A, a Participant shall be considered to have incurred a
Disability if: (i) the Participant is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last
for a continuous period of not less than 12 months; (ii) the Participant
is, by reason of any medically determinable physical or mental impairment which
can be expected to result in death or can be expected to last for a continuous
period of not less than 12 months, receiving income replacement benefits for a
period of not less than 3 months under an accident and health plan covering
employees of the Participant’s Employer; or (iii) the Participant is
determined to be totally disabled by the Social Security Administration.


 


1.11                        Effective Date


 


January 1,
2010.


 


1.12                        Eligible Employee


 


An Employee shall
be considered an Eligible Employee if such Employee is a member of a “select
group of management or highly compensated employees,” within the meaning of
Sections 201, 301 and 401 of ERISA, and is designated as an Eligible Employee
by the Administrator.  The Administrator
may at any time, in its sole discretion, change the eligible criteria for an
Eligible Employee or determine that one or more Participants will cease to be
an Eligible Employee.  The designation of
an Employee as an Eligible Employee in any Plan Year shall not confer upon such
Employee any right to be designated as an Eligible Employee in any future Plan
Year.


 


2

















 


1.13                        Employee


 


Any person employed
by the Employer.


 


1.14                        Employer


 


Overstock.com, Inc.
and its subsidiaries and affiliates.


 


1.15                        Employer Discretionary Contribution


 


A discretionary
contribution made by the Employer that is credited to one or more Participant’s
Accounts in accordance with the terms of Section 3.6 hereof.


 


1.16                        ERISA


 


The Employee
Retirement Income Security Act of 1974, as amended.


 


1.17                        Investment Fund


 


Each investment(s) which
serves as a means to measure value, increases or decreases with respect to a
Participant’s Accounts.


 


1.18                        Participant


 


An Eligible
Employee who is a Participant as provided in Article 2.


 


1.19                        Performance-based Compensation


 


Provided that such
term shall be interpreted within the meaning of regulations promulgated under
Code Section 409A, “Performance-based Compensation” shall mean
compensation that (i) meets the definition of Code Section 409A(a)(4)(B)(iii) and
related guidance and regulations, (ii) is designated as such by the
Employer and relates to services performed during a performance period of at
least twelve months by an Eligible Employee, including any pretax elective
deferrals from said Performance-based Compensation to any Employer sponsored
plan that includes amounts deferred under a Deferral Election or any elective
deferral as defined in Code Section 402(g)(3) or any amount
contributed or deferred at the election of the Eligible Employee in accordance
with Code Section 125 or 132(f)(4).


 


1.20                        Plan Year


 


Calendar year.


 


1.21                        Retirement


 


Retirement shall
mean a Participant’s Separation from Service on, or subsequent to, the
applicable Participant attaining fifty-nine and one-half (591⁄2) years of age.


 


1.22                        Salary


 


An Eligible
Employee’s base salary earned during a Plan Year, including any pretax elective
deferrals from said Salary to any Employer sponsored plan that includes amounts
deferred under a Deferral Election or any elective deferral as defined in Code Section 402(g)(3) or
any amount contributed or deferred at the election of the Eligible Employee in
accordance with Code Section 125 or 132(f)(4).


 


3

















 


1.23                        Separation from Service


 


Provided that such
term shall be interpreted within the meaning of regulations promulgated under
Code Section 409A, a Participant shall incur a Separation from Service
with the Service Recipient upon his or her death, Retirement or other
termination of employment with the Service Recipient, provided, however, that a
Separation from Service shall not occur while the Participant is on military
leave, sick leave, or other bona fide leave of absence if the period of such
leave does not exceed six months, or if longer, so long as the Participant
retains a right to reemployment with the Service Recipient under an applicable
statute or by contract.  Upon a sale or
other disposition of the assets of the Employer to an unrelated purchaser, the
Administrator reserves the right, to the extent permitted by Code Section 409A,
to determine whether Participants providing services to the purchaser after and
in connection with the purchase transaction have experienced a Separation from
Service.


 


1.24                        Service Recipient


 


Provided that such
term shall be interpreted within the meaning of regulations promulgated under
Code Section 409A, Service Recipient shall mean the Employer and all
persons with whom the Employer would be considered a single employer under Code
Section 414(b) (employees of controlled group of corporations), and
all persons with whom such person would be considered a single employer under
Code Section 414(c) (employees of partnerships, proprietorships,
etc., under common control).


 


1.25                        Trust


 


The agreement
between the Employer and the Trustee under which the assets of the Plan are
held, administered and managed.


 


1.26                        Trustee


 


U.S. Bank National
Association or such other successor that shall become Trustee pursuant to the
terms of the Trust.


 


1.27                        Years of Service


 


A Participant’s “Years
of Service” shall be measured by employment during a twelve (12) month period
commencing with the Participant’s date of hire and anniversaries thereof.


 


Article 2
- Participation


 


2.1                               Commencement of Participation


 


Each Eligible
Employee shall become a Participant at the earlier of the date on which his or
her Deferral Election first becomes effective or the date on which an Employer
Discretionary Contribution is first credited to his or her Account.


 


2.2                               Loss of Eligible Employee Status


 


A Participant who
is no longer an Eligible Employee shall not be permitted to submit a Deferral
Election and all Deferrals for such Participant shall cease as of the end of
the Plan Year in which such Participant is determined to no longer be an
Eligible Employee.  Amounts credited to
the Account of a Participant who is no longer an Eligible Employee shall continue
to be held pursuant to the terms of the Plan and shall be distributed as
provided in Article 6.


 


4

















 


Article 3
- Contributions


 


3.1                               Deferral Elections - General


 


A Participant’s
Deferral Election for a Plan Year is irrevocable for that applicable Plan Year;
provided, however that a Deferral Election for a Plan Year may be canceled if
required by the terms of the Employer’s qualified 401(k) plan in order for
the Participant to obtain a hardship withdrawal from the 401(k) plan, or
if required under Section 6.10 (Unforeseeable Emergency) of this
Plan.  Such amounts deferred under the
Plan shall not be made available to such Participant, except as provided in Article 6,
and shall reduce such Participant’s Compensation from the Employer in accordance
with the provisions of the applicable Deferral Election; provided, however,
that all such amounts shall be subject to the rights of the general creditors
of the Employer as provided in Article 8. 
The Deferral Election, in addition to the requirements set forth below,
must designate: (i) the amount of Compensation to be deferred, (ii) the
time of the distribution, and (iii) the form of the distribution.


 


3.2                               Time of Election


 


A Deferral Election shall be void if it is not made in a timely manner as
follows:


 


(a)           A
Deferral Election with respect to any Compensation must be submitted to the
Administrator before the beginning of the calendar year during which the amount
to be deferred will be earned.  As of December 31
of each calendar year, said Deferral Election is irrevocable for the calendar
year to which it relates.


 


(b)           Notwithstanding
the foregoing and in the discretion of the Employer, in a year in which an
Eligible Employee is first eligible to participate, and provided that such
Eligible Employee is not eligible to participate in any other similar account
balance arrangement subject to Code Section 409A, such Deferral Election
may be submitted within thirty (30) days after the date on which the Eligible
Employee is first eligible to participate, and such Deferral Election shall
apply to Compensation to be paid for services to be performed during the
remainder of the calendar year after such election is made.


 


(c)           Notwithstanding
the foregoing and in the discretion of the Employer, a Deferral Election with
respect to any Performance-based Compensation may be submitted by the Eligible
Employee or Participant provided that such Deferral Election is submitted at
least six (6) months prior to the end of the performance period on which
the Performance-based Compensation is based.


 


3.3                               Distribution Elections


 


At the time a Participant makes a Deferral Election, he or she must also
elect the time and form of the distribution by establishing one or more
In-Service Account(s) or Retirement Account(s) as provided in
Sections 5.1 and 6.1.  If the Participant
fails to properly designate the time and form of a distribution, the
Participant’s Account shall be designated as a Retirement Account and shall be
paid in a lump sum.


 


5

















 


3.4                               Additional Requirements


 


The Deferral Election, subject to the limitations set forth in Sections 3.1
and 3.2 hereof, shall comply with the following additional requirements, or as
otherwise required by the Administrator in its sole discretion:


 


(a)           Deferrals
may be made in whole percentages or stated dollar amounts with such limitations
as determined by the Administrator.


 


(b)           The
maximum amount that may be deferred each Plan Year is fifty percent (50%) of
the Participant’s Salary, and ninety percent (90%) of the Participant’s Bonus
or Performance-based Compensation.


 


(c)           The distribution year for an In-Service
Account must be at least two (2) Plan Years subsequent to the Plan Year in
which the Participant first establishes the In-Service subaccount to be
credited with contributions.


 


3.5                               Cancellation of Deferral Election due to
Disability


 


Notwithstanding
anything to the contrary, if a Participant
incurs a disability as defined in this Section 3.5, said Participant may
file an election to cancel a Deferral Election as of the date the election is
received by the Administrator, provided that such cancellation occurs by the
later of the end of the calendar year or the 15th day of the third month following the date the
Participant incurs a disability. 
Disability for purposes of this Section 3.5 only means that a Participant incurs a medically
determinable physical or mental impairment resulting in the Participant’s
inability to perform the duties of his or her position or any substantially
similar position, where such impairment can be expected to result in death or
can be expected to last for a continuous period of not less than six months, as
determined by the Administrator in its sole discretion.


 


3.6                               Employer Discretionary Contributions


 


The Employer reserves the right to make discretionary
contributions to some or all Participants’ Accounts in such amount and in such
manner as may be determined by the Employer. 
Such Employer Discretionary Contribution, at the option of the Employer,
shall be credited to such sub-account(s) as may be elected by the
Participant in accordance with Sections 3.3 and 5.1 and procedures established
by the Administrator.  In the event no
such election is made by the Participant or if Employer desires to direct
Employer Discretionary Contributions to a particular Participant sub-account,
the Employer, in its sole discretion, may determine which sub-account will be
credited with such Employer Discretionary Contribution.  In the event the Employer does not designate
which Participant sub-account shall be credited, such Employer Discretionary
Contribution shall be credited to the Participant’s Retirement sub-account with
the shortest payment period maintained within the Participant’s Account in
accordance with Section 5.1.  If no
Retirement sub-accounts are maintained within the Participant’s Account, such
Employer Discretionary Contribution shall be credited to a lump sum Retirement
sub-account.


 


6

















 


3.7                               Crediting of Contributions


 


(a)           Salary
Deferrals shall be credited to a Participant’s Account, and if applicable
transferred to the Trust, at such time as the Employer shall determine but no
less frequently than at the close of each month.  Bonus or Performance-based Compensation Deferrals
shall be credited to a Participant’s Account, and if applicable transferred to
the Trust, annually.


 


(b)           Employer
Discretionary Contributions, if any, shall be credited to a Participant’s
Account, and if applicable transferred to the Trust, at such time as the
Employer shall determine.


 


Article 4
- Vesting


 


4.1                               Vesting of Deferrals


 


A Participant
shall be one-hundred percent (100%) vested in his or her Account attributable
to Deferrals and any earnings or losses on the investment of such Deferrals.


 


4.2                               Vesting of Employer Discretionary
Contributions


 


A Participant
shall have a vested right to the portion of his or her Account attributable to
Employer Discretionary Contribution(s) and any earnings or losses on the
investment of such Employer Discretionary Contribution(s) according to
such vesting schedule as the Employer shall determine at the time an Employer
Discretionary Contribution is made.


 


4.3                               Vesting due to Certain Events


 


(a)           A Participant who incurs a Separation
from Service due to Retirement shall be fully vested in the amounts credited to
his or her Account as of the date of Retirement.


 


(b)           A Participant who incurs a Separation
from Service due to Disability shall be fully vested in the amounts credited to
his or her Account as of the date of Disability.


 


(c)           Upon a Participant’s death, the
Participant shall be fully vested in the amounts credited to his or her
Account.


 


4.4                               Amounts Not Vested


 


Any amounts
credited to a Participant’s Account that are not vested at the time of his or
her Separation from Service shall be forfeited.


 


Article 5
- Accounts


 


5.1                               Accounts


 


The Administrator
shall establish and maintain a bookkeeping account in the name of each
Participant.  The Administrator shall
also establish sub-accounts as provided in subsection (a) and (b), below,
as elected by the Participant pursuant to Article 3.  A Participant may have a maximum of ten (10) sub-accounts
at any time.


 


7

















 


(a)           A Participant may establish one or
more Retirement Account(s) (“Retirement sub-accounts”) by designating as
such on the Participant’s Deferral Election. 
Each Participant’s Retirement sub-account shall be credited with
Deferrals (as specified in the Participant’s Deferral Election), any Employer
Discretionary Contributions, and the Participant’s allocable share of any
earnings or losses on the foregoing. 
Each Participant’s Retirement sub-account shall be reduced by any
distributions made plus any federal and state tax withholding, and any social
security withholding tax as may be required by law.


 


(b)           A Participant may establish one or
more In-Service Accounts (“In-Service sub-accounts”) by designating as such in
the Participant’s Deferral Election the year in which payment shall be
made.  Each Participant’s In-Service
sub-account shall be credited with Deferrals (as specified in the Participant’s
Deferral Election), any Employer Discretionary Contributions, and the
Participant’s allocable share of any earnings or losses on the foregoing.  Each Participant’s In-Service sub-account
shall be reduced by any distributions made plus any federal and state tax
withholding and any social security withholding tax as may be required by law.


 


5.2                               Investments, Gains and Losses


 


(a)           A Participant may direct that his or
her Retirement sub-accounts and or In-Service sub-accounts established pursuant
to Section 5.1 may be valued as if they were invested in one or more
Investment Funds as selected by the Employer in multiples of one percent
(1%).  The Employer may from time to time, at the discretion of the
Administrator, change the Investment Funds for purposes of this Plan.


 


(b)           The Administrator shall adjust the
amounts credited to each Participant’s Account to reflect Deferrals, any
Employer Discretionary Contributions, investment experience, distributions and
any other appropriate adjustments.  Such
adjustments shall be made as frequently as is administratively feasible.


 


(c)           A Participant may change his or her
selection of Investment Funds no more than six (6) times each Plan Year with respect to his or her Account or sub-accounts
by filing a new election in accordance with procedures established by the
Administrator.  An election shall
be effective as soon as administratively feasible following the date the change
is submitted on a form prescribed by the Administrator.


 


(d)           Notwithstanding
the Participant’s ability to designate the Investment Fund in which his or her
deferred Compensation shall be deemed invested, the Employer shall have no
obligation to invest any funds in accordance with the Participant’s
election.  Participants’ Accounts shall
merely be bookkeeping entries on the Employer’s books, and no Participant shall
obtain any property right or interest in any Investment Fund.


 


8

















 


Article 6
- Distributions


 


6.1                               Distribution Election


 


Each Participant
shall designate in his or her Deferral Election the form and timing of his or
her distribution by indicating the type of sub-account as described under Section 5.1,
and by designating the form in which payments shall be made from the choices
available under Section 6.2 and 6.3 hereof.  Notwithstanding anything to the contrary
contained herein provided, no acceleration of the time or schedule of payments
under the Plan shall occur except as permitted under this Plan, Code Section 409A
and the regulations thereunder.


 


6.2                               Distributions Upon an
In-Service Account Triggering Date


 


In-Service sub-account distributions shall begin as soon as
administratively feasible but no later than ninety (90) days following January 1
of the calendar year designated by the Participant on a properly submitted
Deferral Election, and are payable in either a lump-sum payment or
substantially equal annual installments, as described in Section 6.4 below,
over a period of up to five (5) years as elected by the Participant in his
or her Deferral Election.  If the
Participant fails to properly designate the form of the distribution, the
sub-account shall be paid in a lump-sum payment.


 


6.3                               Distributions Upon
Retirement


 


If the Participant has a Separation from Service due to Retirement, the
Participant’s Retirement sub-account(s) shall be distributed as soon as
administratively feasible but no later than ninety (90) days after the first
day of the seventh month following Participant’s Retirement, provided that the
Participant shall have no right to designate the taxable year of the
payment.  Distribution shall be made
either in a lump-sum payment or in substantially equal annual installments, as
defined in Section 6.4 below, over a period of up to ten (10) years
as elected by the Participant.  If the
Participant fails to properly designate the form of the distribution, the
sub-account shall be paid in a lump-sum payment.  If a Participant has any In-Service sub-accounts
at the time of his or her Retirement, said sub-accounts shall be distributed in
a lump sum as soon as administratively feasible but no earlier than the first
day of the seventh month following Participant’s Retirement.


 


6.4                               Substantially Equal Annual
Installments


 


(a)           The
amount of the substantially equal payments shall be determined by multiplying
the Participant’s Account or sub-account by a fraction, the denominator of
which in the first year of payment equals the number of years over which benefits
are to be paid, and the numerator of which is one (1).  The amounts of the payments for each
succeeding year shall be determined by multiplying the Participant’s Account or
sub-account as of the applicable anniversary of the payout by a fraction, the
denominator of which equals the number of remaining years over which benefits
are to be paid, and the numerator of which is one (1). Installment payments
made pursuant to this Section 6.4 shall be made as soon as
administratively feasible but no later than ninety (90) days following the
distribution event and each anniversary of the distribution event, provided
that the Participant shall have no right to designate the taxable year of any
payment.


 


9

















 


(b)           For
purposes of the Plan pursuant to Code Section 409A and regulations
thereunder, a series of annual installments from a particular subaccount shall
be considered a single payment.


 


6.5                               Distributions due to
other Separation from Service


 


If the Participant has a Separation from Service for any reason other than
Retirement, death or Disability, all vested amounts credited to his or her
Account shall be paid to the Participant in a lump-sum, as soon as
administratively feasible but no later than ninety (90) days after the first
day of the seventh month following Participant’s Separation from Service,
provided that the Participant shall have no right to designate the taxable year
of the payment.


 


6.6                               Distributions upon
Separation from Service due to Disability


 


Upon a Participant’s Separation from Service prior to attaining age 591⁄2 due
to Disability, all amounts credited to his or her Account shall be paid to the
Participant in a lump sum, as soon as administratively feasible but no later
than ninety (90) days after the first day of the seventh month following
Participant’s Separation from Service, provided that the Participant shall have
no right to designate the taxable year of the payment.


 


6.7                               Distributions upon
Death


 


Upon the death of a Participant, all amounts credited to his or her Account
shall be paid, as soon as administratively feasible but no later than ninety
(90) days following Participant’s date of death, to his or her beneficiary or
beneficiaries, as determined under Article 7 hereof, in a lump sum,
provided that the beneficiary or beneficiaries shall have no right to designate
the taxable year of the payment.


 


6.8                               Changes to Distribution Elections


 


A Participant will
be permitted to elect to change the form or timing of the distribution of the
balance of his or her one or more sub-accounts within his or her Account to the
extent permitted and in accordance with the requirements of Code Section 409A(a)(4)(C),
including the requirement that (i) a redeferral election may not take
effect until at least twelve (12) months after such election is filed with the
Employer, (ii) an election to further defer a distribution (other than a
distribution upon death, Disability or an unforeseeable emergency) must  result in the first distribution subject to
the election being made at least five (5) years after the previously
elected date of distribution, and (iii) any redeferral election affecting
a distribution at a fixed date must be filed with the Employer at least twelve
(12) months before the first scheduled payment under the previous fixed date
distribution election.  Once a
sub-account begins distribution, no such changes to distributions shall be
permitted.


 


6.9                               Acceleration or Delay in Payments


 


To the extent
permitted by Code Section 409A, and notwithstanding any provision of the
Plan to the contrary, the Administrator, in its sole discretion, may elect to (i) accelerate
the time or form of payment of a benefit owed to a Participant hereunder in
accordance with the terms and subject to the conditions of Treasury Regulations
Section 1.409A-3(j)(4), or (ii) delay the time of payment of a
benefit owed to a Participant hereunder in accordance with the terms and
subject to the conditions of Treasury Regulations Section 1.409A-2(b)(7).


 


10
















 


6.10                        Unforeseeable Emergency


 


The Administrator
may permit an early distribution of part or all of any deferred amounts;
provided, however, that such distribution shall be made only if the
Administrator, in its sole discretion, determines that the Participant, or the
Participant’s beneficiary, has experienced an Unforeseeable Emergency.  An Unforeseeable Emergency is defined as a
severe financial hardship resulting from an illness or accident of the
Participant, the Participant’s spouse, the Participant’s beneficiary, or a
dependent (as defined in Code Section 152(a)) of the Participant, loss of
the Participant’s property due to casualty, or other similar extraordinary and
unforeseeable  circumstances arising as a
result of events beyond the control of the Participant.  If an Unforeseeable Emergency is determined
to exist, a distribution may not exceed the amounts necessary to satisfy such
emergency plus amounts necessary to pay taxes reasonably anticipated as a
result of the distribution, after taking into account the extent to which such
hardship is or may be relieved through reimbursement or compensation by
insurance or otherwise or by liquidation of the Participant’s assets (to the
extent the liquidation of such assets would not itself cause severe financial
hardship).  Upon a distribution to a
Participant under this Section 6.10, the Participant’s Deferrals shall
cease and no further Deferrals shall be made for such Participant for the
remainder of the Plan Year and for the immediately succeeding Plan Year.


 


6.11                        Domestic Relations Orders


 


The Administrator
may permit the acceleration of the time or schedule of a payment under the Plan
to an individual other than a Participant as may be necessary to fulfill a
domestic relations order (as defined in Code Section 414(p)(1)(B)).


 


6.12                        Minimum Distribution


 


Notwithstanding any provision to the contrary, if the balance of a
Participant’s Account at the time of a distribution event or at the time of a
scheduled installment payment does not exceed $15,000 (or, if less, the
applicable dollar amount under Code Section 402(g)), then the Participant
shall be paid his or her Account as a single lump sum, provided that
the distribution results
in the termination and liquidation of the Participant’s entire
interest in the Plan, including all agreements, methods, programs or other
arrangements with respect to which deferrals of compensation are treated as
having been deferred under a single plan under the plan aggregation rules of
Code Section 409A and regulations thereunder.


 


6.13                        Form of Payment


 


All distributions shall be made in the form of cash.


 


Article 7
- Beneficiaries


 


7.1                               Beneficiaries


 


Each Participant
may from time to time designate one or more persons (who may be any one or more
members of such person’s family or other persons, administrators, trusts,
foundations or other entities) as his or her beneficiary under the Plan.  Such designation shall be made in a form
prescribed by the Administrator.  Each
Participant may at any time and from time to time, change any previous
beneficiary designation, without notice to or consent of any previously
designated beneficiary, by amending his or her previous designation in a form
prescribed by the Administrator.  If the
beneficiary does not survive the Participant (or is 


 


11

















 


otherwise
unavailable to receive payment), or if no beneficiary is validly designated
then the amounts payable under this Plan shall be paid to the Participant’s
estate.  If more than one person is the
beneficiary of a deceased Participant, each such person shall receive a pro
rata share of any death benefit payable unless otherwise designated in the
applicable form.  If a beneficiary who is
receiving benefits dies, all benefits that were payable to such beneficiary
shall then be payable to the estate of that beneficiary.


 


7.2                               Lost Beneficiary


 


All Participants
and beneficiaries shall have the obligation to keep the Administrator informed
of their current address until such time as all benefits due have been
paid.  If a Participant or beneficiary
cannot be located by the Administrator exercising due diligence, then, in its
sole discretion, the Administrator may presume that the Participant or
beneficiary is deceased for purposes of the Plan and all unpaid amounts (net of
due diligence expenses) owed to the Participant or beneficiary shall be paid
accordingly or, if a beneficiary cannot be so located, then such amounts may be
forfeited.  Any such presumption of death
shall be final, conclusive and binding on all parties.


 


Article 8
- Funding


 


8.1                               Prohibition Against Funding


 


Should any
investment be acquired in connection with the liabilities assumed under this
Plan, it is expressly understood and agreed that the Participants and
beneficiaries shall not have any right with respect to, or claim against, such
assets nor shall any such purchase be construed to create a trust of any kind
or a fiduciary relationship between the Employer and the Participants, their
beneficiaries or any other person.  Any
such assets shall be and remain a part of the general, unpledged, unrestricted
assets of the Employer, subject to the claims of its general creditors.  It is the express intention of the parties
hereto that this arrangement shall be unfunded for tax purposes and for
purposes of Title I of the ERISA.  Each
Participant and beneficiary shall be required to look to the provisions of this
Plan and to the Employer itself for enforcement of any and all benefits due
under this Plan, and to the extent any such person acquires a right to receive
payment under this Plan, such right shall be no greater than the right of any
unsecured general creditor of the Employer. 
The Employer or the Trust shall be designated the owner and beneficiary
of any investment acquired in connection with its obligation under this Plan.


 


8.2                               Deposits in Trust


 


Notwithstanding Section 8.1,
or any other provision of this Plan to the contrary, the Employer may deposit
into the Trust any amounts it deems appropriate to pay the benefits under this
Plan.  The amounts so deposited may
include all contributions made pursuant to a Deferral Election by a Participant
and any Employer Discretionary Contributions.


 


8.3                               Withholding of Employee Contributions


 


The Administrator
is authorized to make any and all necessary arrangements with the Employer in
order to withhold the Participant’s Deferrals under Section 3.1 hereof
from his or her Compensation.  The
Administrator shall determine the amount and timing of such withholding.


 


12

















 


Article 9
- Claims Administration


 


9.1                               General


 


If a Participant,
beneficiary or his or her representative is denied all or a portion of an
expected Plan benefit for any reason and the Participant, beneficiary or his or
her representative desires to dispute the decision of the Administrator, he or
she must file a written notification of his or her claim with the
Administrator.


 


9.2                               Claims Procedure


 


Upon receipt of
any written claim for benefits, the Administrator shall be notified and shall
give due consideration to the claim presented. 
If any Participant or beneficiary claims to be entitled to benefits
under the Plan and the Administrator determines that the claim should be denied
in whole or in part, the Administrator shall, in writing, notify such claimant
within ninety (90) days (forty-five (45) days if the claim is on account of
Disability) of receipt of the claim that the claim has been denied.  The Administrator may extend the period of
time for making a determination with respect to any claim for a period of up to
ninety (90) days (thirty (30) days if claim is on account of Disability),
provided that the Administrator determines that such an extension is necessary
because of special circumstances and notifies the claimant, prior to the expiration
of the initial ninety (90) day (or forty-five (45) day) period, of the
circumstances requiring the extension of time and the date by which the Plan
expects to render a decision.  If the
claim is denied to any extent by the Administrator, the Administrator shall
furnish the claimant with a written notice setting forth:


 


(a)           the specific reason or reasons for
denial of the claim;


 


(b)           a specific reference to the Plan
provisions on which the denial is based;


 


(c)           a description of any additional material
or information necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary;


 


(d)           an explanation of the provisions of
this Article, including a statement of the claimant’s right to bring a civil action
under Section 502(a) of ERISA following an adverse benefit
determination on review; and


 


(e)           if an internal rule, guideline,
protocol, or other similar criterion was relied upon in making the adverse
determination, either the specific rule, guideline, protocol, or other similar
criterion, or a statement that such a rule, guideline, protocol or other
similar criterion was relied upon in making the adverse determination and that
a copy of such rule, guideline, protocol or other criterion will be provided
free of charge to the claimant upon request.


 


Under no
circumstances shall any failure by the Administrator to comply with the
provisions of this Section 9.2 be considered to constitute an allowance of
the claimant’s claim.


 


13

















 


9.3                               Right of Appeal


 


A claimant who has
a claim denied wholly or partially under Section 9.2 may appeal to the
Administrator for reconsideration of that claim.  A request for reconsideration under this Section must
be filed by written notice within sixty (60) days (one-hundred and eighty (180)
days if the claim is on account of Disability) after receipt by the claimant of
the notice of denial under Section 9.2.


 


9.4                               Review of Appeal


 


Upon receipt of an
appeal the Administrator shall promptly take action to give due consideration
to the appeal.  Such consideration may
include a hearing of the parties involved, if the Administrator feels such a
hearing is necessary.  In preparing for
this appeal the claimant shall be given the right to review pertinent documents
and the right to submit in writing a statement of issues and comments.  After consideration of the merits of the
appeal the Administrator shall issue a written decision which shall be binding
on all parties.  The decision shall specifically
state its reasons and pertinent Plan provisions on which it relies.  The Administrator’s decision shall be issued
within sixty (60) days (forty-five (45) days if the claim is on account of
Disability) after the appeal is filed, except that the Administrator may extend
the period of time for making a determination with respect to any claim for a
period of up to sixty (60) days (forty-five (45) days if the claim is on
account of Disability), provided that the Administrator determines that such an
extension is necessary because of special circumstances and notifies the
claimant, prior to the expiration of the initial sixty (60) day (or, if the
claim is on account of Disability, initial forty-five (45) day) period, of the
circumstances requiring the extension of time and the date by which the Plan
expects to render a decision.  Under no
circumstances shall any failure by the Administrator to comply with the
provisions of this Section 9.4 be considered to constitute an allowance of
the claimant’s claim.


 


In the case of a
claim on account of Disability: (i) the review of the denied claim shall
be conducted by an employee who is neither the individual who made the initial
determination or a subordinate of such person; and (ii) no deference shall
be given to the initial determination. 
For issues involving medical judgment, the employee must consult with an
independent health care professional who may not be the health care
professional who rendered the initial claim.


 


In the case of an adverse benefit determination on review, the notification to
the claimant shall set forth, in a manner calculated to be understood by the
claimant:


 


(a)           the specific reason or reasons for
the adverse determination;


 


(b)           reference to the specific Plan
provisions on which the benefit determination is based;


 


(c)           a statement that the claimant is
entitled to receive, upon request and free of charge, reasonable access to, and
copies of, all documents, records and other information relevant to the
claimant’s claim for benefits;


 


(d)           a statement of the claimant’s right
to bring an action under Section 502(a) of ERISA;


 


14

















 


(e)           if an internal rule, guideline,
protocol, or other similar criterion was relied upon in making the adverse
determination, either the specific rule, guideline, protocol, or other similar
criterion, or a statement that such a rule, guideline, protocol or other
similar criterion was relied upon in making the adverse determination and that
a copy of such rule, guideline, protocol or other criterion will be provided
free of charge to the claimant upon request; and


 


(f)            the following statement: “You and
your plan may have other voluntary alternative dispute resolution options, such
as mediation.  One way to find out what
may be available is to contact your local U.S. Department of Labor Office.


 


9.5                               Designation


 


The Administrator
may designate any other person of its choosing to make any determination
otherwise required under this Article. 
Any person so designated shall have the same authority and discretion
granted to the Administrator hereunder.


 


Article 10
- General Provisions


 


10.1                        Administrator


 


(a)           The Administrator is expressly
empowered to limit the amount of Compensation that may be deferred; to deposit
amounts into the Trust in accordance with Section 8.2 hereof; to interpret
the Plan, and to determine all questions arising in the administration,
interpretation and application of the Plan; to employ actuaries, accountants,
counsel, and other persons it deems necessary in connection with the
administration of the Plan; to request any information from the Employer it
deems necessary to determine whether the Employer would be considered insolvent
or subject to a proceeding in bankruptcy; and to take all other necessary and
proper actions to fulfill its duties as Administrator.


 


(b)           The Administrator shall not be liable
for any actions by it hereunder, unless due to its own negligence, willful
misconduct or lack of good faith.


 


(c)           The Administrator shall be
indemnified and saved harmless by the Employer from and against all personal
liability to which it may be subject by reason of any act done or omitted to be
done in its official capacity as Administrator in good faith in the
administration of the Plan and Trust, including all expenses reasonably
incurred in its defense in the event the Employer fails to provide such defense
upon the request of the Administrator. 
The Administrator is relieved of all responsibility in connection with
its duties hereunder to the fullest extent permitted by law, short of breach of
duty to the beneficiaries.


 


10.2                        No Assignment


 


Benefits or
payments under this Plan shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment, or garnishment
by creditors of the Participant or the Participant’s beneficiary, whether
voluntary or involuntary, and any attempt to so anticipate, alienate, sell,
transfer, assign, pledge, encumber, attach or garnish the same shall not be
valid, nor shall any such benefit or payment be in any way liable for or
subject to the debts, contracts, liabilities, engagement or torts of any
Participant or beneficiary, or 


 


15

















 


any
other person entitled to such benefit or payment pursuant to the terms of this
Plan, except to such extent as may be required by law.  If any Participant or beneficiary or any
other person entitled to a benefit or payment pursuant to the terms of this
Plan becomes bankrupt or attempts to anticipate, alienate, sell, transfer,
assign, pledge, encumber, attach or garnish any benefit or payment under this
Plan, in whole or in part, or if any attempt is made to subject any such
benefit or payment, in whole or in part, to the debts, contracts, liabilities,
engagements or torts of the Participant or beneficiary or any other person
entitled to any such benefit or payment pursuant to the terms of this Plan,
then such benefit or payment, in the discretion of the Administrator, shall
cease and terminate with respect to such Participant or beneficiary, or any
other such person.


 


10.3                        No Employment Rights


 


Participation in
this Plan shall not be construed to confer upon any Participant the legal right
to be retained in the employ of the Employer, or give a Participant or
beneficiary, or any other person, any right to any payment whatsoever, except
to the extent of the benefits provided for hereunder.  Each Participant shall remain subject to
discharge to the same extent as if this Plan had never been adopted.


 


10.4                        Incompetence


 


If the
Administrator determines that any person to whom a benefit is payable under
this Plan is incompetent by reason of physical or mental disability, the
Administrator shall have the power to cause the payments becoming due to such
person to be made to another for his or her benefit without responsibility of
the Administrator or the Employer to see to the application of such
payments.  Any payment made pursuant to
such power shall, as to such payment, operate as a complete discharge of the
Employer, the Administrator and the Trustee.


 


10.5                        Identity


 


If, at any time,
any doubt exists as to the identity of any person entitled to any payment
hereunder or the amount or time of such payment, the Administrator shall be
entitled to hold such sum until such identity or amount or time is determined
or until an order of a court of competent jurisdiction is obtained.  The Administrator shall also be entitled to
pay such sum into court in accordance with the appropriate rules of
law.  Any expenses incurred by the
Employer, Administrator, and Trust incident to such proceeding or litigation
shall be charged against the Account of the affected Participant.


 


10.6                        Other Benefits


 


The benefits of
each Participant or beneficiary hereunder shall be in addition to any benefits
paid or payable to or on account of the Participant or beneficiary under any
other pension, disability, annuity or retirement plan or policy whatsoever.


 


10.7                        Expenses


 


All expenses
incurred in the administration of the Plan whether incurred by the Employer or
the Plan shall be paid by the Employer.


 


10.8                        Insolvency


 


Should the
Employer be considered insolvent (as defined by the Trust), the Employer,
through its Board and chief executive officer, shall give immediate written
notice of such to the 


 


16

















 


Administrator
of the Plan and the Trustee.  Upon
receipt of such notice, the Administrator or Trustee shall cease to make any
payments to Participants who were Employees of the Employer or their beneficiaries
and shall hold any and all assets attributable to the Employer for the benefit
of the general creditors of the Employer.


 


10.9                        Amendment or Modification


 


The Employer may, at any time, in its sole discretion, amend or modify the
Plan in whole or in part, except that no such amendment or modification shall
have any retroactive effect to reduce any amounts allocated to a Participant’s
Accounts, and provided that such amendment or modification complies with Code Section 409A
and related regulations thereunder.


 


10.10                 Plan Suspension


 


The Employer further reserves the right to suspend the Plan in whole or in
part, except that no such suspension shall have any retroactive effect to
reduce any amounts allocated to a Participant’s Accounts, and provided that the
distribution of the vested Participant Accounts shall not be accelerated but
shall be paid at such time and in such manner as determined under the terms of
the Plan immediately prior to suspension as if the Plan had not been suspended.


 


10.11                 Plan Termination


 


The Employer further reserves the right to terminate the Plan in whole or
in part, in the following manner, except that no such termination shall have
any retroactive effect to reduce any amounts allocated to a Participant’s
Accounts, and provided that any distribution in connection with such
termination complies with Code Section 409A and related regulations
thereunder:


 


(a)           The Employer, in its sole discretion,
may terminate the Plan and distribute all vested Participants’ Accounts no earlier
than twelve (12) calendar months from the date of the Plan termination and no
later than twenty-four (24) calendar months from the date of the Plan
termination, provided however that all other similar arrangements are also
terminated by the Employer for any affected Participant and no other similar
arrangements are adopted by the Employer for any affected Participant within a
three (3) year period from the date of termination; or


 


(b)           The
Employer may decide, in its sole discretion, to terminate the Plan in the event
of a corporate dissolution taxed under Code Section 331, or with the
approval of a bankruptcy court, provided that the Participants vested Account
balances are distributed to Participants and are included in the Participants’
gross income in the latest of:  (i) the
calendar year in which the termination occurs; (ii) the calendar year in
which the amounts deferred are no longer subject to a substantial risk of
forfeiture; or (iii) the first calendar year in which payment is
administratively practicable.


 


10.12                 Plan Termination due to a Change-in-Control


 


The Employer may
decide, in its discretion, to terminate the Plan in the event of a
Change-in-Control and distribute all vested Participants Account balances no earlier than
thirty (30) days prior to the Change-in-Control and no later than twelve (12)
months after the effective date of the Change-in-Control, provided however that
the Employer terminates all other similar arrangements for any affected
Participant.


 


17

















 


10.13                 Construction


 


All questions of
interpretation, construction or application arising under or concerning the
terms of this Plan shall be decided by the Administrator, in its sole and final
discretion, whose decision shall be final, binding and conclusive upon all
persons.


 


10.14                 Governing Law


 


This Plan shall be
governed by, construed and administered in accordance with the applicable
provisions of ERISA, Code Section 409A, and any other applicable federal
law, provided, however, that to the extent not preempted by federal law this
Plan shall be governed by, construed and administered under the laws of the
State of Utah other than its laws respecting choice of law.


 


10.15                 Severability


 


If any provision
of this Plan is held invalid or unenforceable, its invalidity or
unenforceability shall not affect any other provision of this Plan and this
Plan shall be construed and enforced as if such provision had not been included
therein.  If the inclusion of any
Employee (or Employees) as a Participant under this Plan would cause the Plan
to fail to comply with the requirements of sections 201(2), 301(a)(3) and
401(a)(1) of ERISA, or Code Section 409A, then the Plan shall be
severed with respect to such Employee or Employees, who shall be considered to
be participating in a separate arrangement.


 


10.16                 Headings


 


The Article headings
contained herein are inserted only as a matter of convenience and for reference
and in no way define, limit, enlarge or describe the scope or intent of this
Plan nor in any way shall they affect this Plan or the construction of any
provision thereof.


 


10.17                 Terms


 


Capitalized terms
shall have meanings as defined herein. 
Singular nouns shall be read as plural, masculine pronouns shall be read
as feminine, and vice versa, as appropriate.


 


IN WITNESS WHEREOF, Overstock.com, Inc. has
caused this instrument to be executed by its duly authorized officer, effective
as of this 11th day of December, 2009.


 


	
   

  	
   

  	
  Overstock.com, Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jonathan E.
  Johnson

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Stephen J.
  Chesnut

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Senior Vice
  President, Finance

  	
   

  	
   

  	
   

  



 


18